This chapter examines the removal of Carol Lam, the former United States Attorney for the Southern District of California.

Lam’s Background

Lam received her law degree in 1985 from the Stanford University Law School. She then served as a clerk for a judge on the Second Circuit Court of Appeals. After her clerkship, Lam served as an Assistant United States Attorney (AUSA) in the Southern District of California from 1986 to 2000. In 2000, Lam was appointed as a California Superior Court judge.

In 2001, Lam applied for the position of U.S. Attorney and was interviewed twice at the Department. Lam described herself as “non-partisan” and told us she is not a registered member of any political party. Lam stated that during her second interview she believed that the interviewers asked for assurances that she supported the Department of Justice’s policies in light of the fact that she was not a Republican. Lam said she told the interviewers that she believed that “it is a responsibility of a U.S. Attorney to effect the Attorney General’s guidelines in a way that makes sense in the district.”

After her second interview, Kyle Sampson, Chief of Staff to the Attorney General, called her and offered her the position. Lam said she commented to Sampson that she had not “made things easy by virtue of the fact that I was a non-partisan.” According to Lam, Sampson did not respond to her remark.

On November 18, 2002, Lam was sworn in as the U.S. Attorney for the Southern District of California. She was told to resign on December 7, 2006, and her last day in office was February 15, 2007.

The EARS Evaluation of Lam’s Office

Lam’s office underwent one EARS evaluation during her tenure as U.S. Attorney in February 2005. The EARS evaluators wrote that Lam was “an effective manager . . . respected by the judiciary, law enforcement agencies, and the USAO staff.”

The EARS evaluation, however, noted concerns about the U.S. Attorney’s Office (USAO) prosecution of firearms and immigration cases. The report stated: “The USAO intake and initial processing of criminal cases worked smoothly except for firearms cases . . . . The number of firearms cases prosecuted by the USAO was well below the national average and well below the average of other USAOs in California.” The EARS evaluation also stated: “[T]he number of immigration cases handled per AUSA work year was statistically lower than the immigration cases handled per AUSA work year in the other Southwest Border USAOs.”

Lam’s Status on the Removal Lists

As discussed in Chapter Three, Lam’s name appeared on Sampson’s first removal list in March 2005, and she remained on all the lists until her removal in December 2006.

Reasons Proffered for Lam’s Removal

Sampson said that Lam was placed on the removal list because of concerns about her district’s prosecution of firearms cases and she remained on the list because of additional concerns over her office’s prosecution of immigration cases. Several senior Department officials told us they agreed Lam should be removed. For example, former Principal Associate Deputy Attorney General Mercer stated that when he discussed with Sampson possible U.S. Attorneys who could be removed, he would have suggested Lam if her name had not already been on the list.

Associate Deputy Attorney General Margolis, told congressional staff that while he thought Lam was “outstanding,” “tough,” and “honest,” she was also “probably insubordinate” about “what the priorities of the Department would be.” Deputy Attorney General Paul McNulty said that although he had serious concerns about Lam’s performance, he probably would have preferred to address those concerns by some method other than removal.

After the removals, the chart created by Monica Goodling to prepare McNulty for his congressional testimony stated with regard to Lam’s removal:

[Lam] continually failed to perform in relation to significant leadership priorities – these were priorities that were well-known within the Department . . . .

[T]he President and Attorney General have made clear that border enforcement is a top priority . . . . [Lam] failed to tackle this responsibility as aggressively and as vigorously as we expected and needed her to do . . . . The President has made clear that he expects strong immigration enforcement efforts, but SDCA [the U.S. Attorney’s Office for the Southern District of California] has only brought a fraction of the cases that other significant border districts are doing . . . .

[T]he President and both Attorneys General in this Administration made clear that, after terrorism, gun crime is the top priority and an important tactic to fighting violent crime . . . . SDCA has only brought a fraction of the cases of other extra-large districts. Despite its size and population, it ranks 91 out of 93 districts in terms of average numbers of firearms cases since FY 2000 (doing only an average of 18 cases) . . . .

Thus, according to the statements of Department officials and this document, the Department removed Lam for two main reasons: her alleged failure to prosecute firearms and immigration cases. We discuss these reasons below, as well as another allegation that surfaced after Lam’s removal – that she was removed because of her office’s involvement in the investigations of Congressman Randy “Duke” Cunningham and Central Intelligence Agency (CIA) official Kyle Dustin Foggo.171

Chronology of Events Related to Lam’s Removal

Firearms Cases

In 2001 the Department initiated Project Safe Neighborhoods (PSN), a national program designed to prevent and deter gun violence.172 PSN was a priority of the Department. For example, it was discussed in the Department’s 2003-2008 strategic plan, and since 2001 more than $1.5 billion dollars has been allocated to PSN to hire prosecutors and implement programs to prosecute firearms cases and to reduce gun violence.

In early 2004, the Office of the Attorney General began to identify those United States Attorneys’ Offices that it believed were “underperforming” in implementing PSN, based on data collected by EOUSA. In a March 10, 2004, memorandum to Sampson, who was Counselor to the Attorney General at the time, the EOUSA Director identified 16 U.S. Attorneys’ Offices whose PSN performance was “below their potential.” Lam’s office was one of these offices. The memorandum noted that Lam’s office returned “only 17 firearms indictments” in FY 2003, and that her office’s PSN indictments and defendants “per criminal work years for FY 2003 is the lowest in the nation.” In subsequent Department analyses of PSN performance, the Southern District of California was identified as a district whose firearms prosecution performance was in need of improvement.

In the summer of 2004, Deputy Attorney General Comey made a series of telephone calls to, or had meetings with, 12 of the 16 U.S. Attorneys whose districts had been identified by EOUSA and the Attorney General’s Office as PSN underperformers. Comey called Lam in July 2004.173 According to Comey, he told Lam that PSN is “a priority of the Department; it’s something incredibly important to the Attorney General and me, and to the President.” Comey said that he told Lam that he wanted her “to really focus on this and make sure you are not missing something.” Comey also described his own experience with PSN prosecutions in the Eastern District of Virginia and the Southern District of New York, telling Lam that federal prosecutors had a much larger role in gun prosecutions in Virginia than in New York, because of New York’s strong state gun laws. Comey said he told Lam, as he told all the U.S. Attorneys he called, that he was not calling “just for the sake of getting your [PSN] numbers up.”

When we asked Comey whether he thought that Lam understood that she needed to increase her PSN numbers, Comey said, “I was keen not to convey that directly.” Comey also said that although he did not recall Lam’s explanation for her office’s low number of firearms cases, he thought it was acceptable to let state prosecutors handle gun prosecutions when the state had stricter laws, as Lam asserted was the case in California. However, Comey also told us that he expected her office’s PSN numbers to increase because of the fact that the Deputy Attorney General had called her to discuss her district’s low numbers. Comey said he did not tell Lam that a failure to improve her PSN numbers would result in her removal.

In a July 20, 2004, memorandum to Sampson, Spencer Pryor, a Counsel in the Office of the Deputy Attorney General and a participant in Comey’s July phone call to Lam, summarized in a memorandum the results of Comey’s calls to and meetings with the U.S. Attorneys about PSN. Pryor wrote that these efforts were designed as “an important reminder . . . that PSN is a Presidential priority that must be focused on by each of the U.S. Attorney’s Offices and their respective PSN task forces.” Pryor’s memorandum stated that Lam “acknowledged problems with PSN initiative,” but that she explained that she had not received any PSN resources. Pryor’s memorandum disagreed with Lam’s assertion, stating that her district had received one new PSN prosecutor. Pryor also wrote that Lam said her district’s PSN case screening process was “broken,” and that a new system would help boost PSN prosecutions. Pryor also noted in the memorandum Lam’s statement that California’s “tough firearms” laws were responsible in part for the low PSN numbers in her district. Pryor concluded by stating that Lam’s office needed more resources to prosecute PSN cases.

Lam discussed her call with Comey in a July 7, 2004, e-mail to her staff. She wrote that Comey said the Southern District of California ranked 93 out of 94 USAOs in firearms prosecutions, with only 20 such cases in the past year. Lam reported that Comey told her he was not interested in bringing gun cases just for the sake of bringing gun cases, and that she told Comey she thought the district’s PSN numbers would be higher in the future, but not to expect a “meteoric rise.” Lam also stated in the e-mail that she explained to Comey that the district’s low numbers were a result of several factors: California has strong state gun laws; the Southern District is comprised of only two counties and local law enforcement does a good job prosecuting gun crimes; and her district already has an “immense” caseload. Lam also stated in her e-mail that her office would fix any problems it had with local law enforcement regarding the referral of gun prosecutions to her office. Lam told us that she believed Comey’s call was an “indirect” request for her to increase the office’s PSN numbers, because it was “obviously the reason he was calling.”

Lam also told us that she had hoped that her PSN prosecutions would increase as a result of a protocol her office had entered into with local law enforcement agencies in which those offices would refer to her office any firearm case where the federal sentence would exceed the state sentence by 24 months. In addition, Lam said that in 2005 or 2006 her office made concerted efforts to seek more firearm cases pursuant to the protocol by sending federal prosecutors to meet with local law enforcement agencies and by changing the way local officials handled the paperwork on firearm cases to make referrals easier. However, Lam said these measures were “a solution in search of a problem.” Lam said that she was disappointed when more cases were not referred to her office as a result of the protocol and her office’s efforts to implement it.

Comey left the Department in August 2005. In March 2006, the Office of the Deputy Attorney General prepared another memorandum for Deputy Attorney General McNulty regarding PSN performance by U.S. Attorneys’ Offices. The memorandum recommended that the Deputy Attorney General contact four U.S. Attorneys’ Offices regarding their poor PSN performance, one of which was Lam’s office. In addition, the memorandum identified 11 other U.S. Attorneys’ Offices where PSN performance could be resolved by the staffs of the Deputy Attorney General’s Office and the USAO. The memorandum, which was also sent to Mercer and Chief of Staff to the Deputy Attorney General Elston, noted that Lam’s office had filed only 12 PSN cases in FY 2005. However, the memorandum stated that PSN performance was not intended to be assessed by prosecution statistics alone.

We found no evidence that McNulty ever contacted Lam or the other three offices identified in this memorandum. McNulty told us that he “just didn’t have the time to get around to the systematic review of the gun cases to go to different U.S. Attorneys and talk to them about the numbers.”

However, Lam appeared to be aware that her PSN numbers continued to be low. In April 2006, she sent an e-mail to a fellow U.S. Attorney in which she said she was not going to a PSN conference because she was “too embarrassed.”

On July 5, 2006, Mercer sent a facsimile to Lam with portions of a United States Sentencing Commission report for fiscal year 2005 containing sentencing statistics for the southwest border U. S. Attorneys’ Offices. These statistics showed that in each year between 2002 and 2005, Lam’s office was involved in the sentencing of fewer than 20 defendants whose primary offense was a firearms charge, and that other border districts were involved in far more such sentencings. According to the report, some border districts had approximately 10 times more defendants sentenced in gun cases than Lam’s district. Mercer asked Lam to confirm that these statistics were accurate.174

After speaking with Mercer on July 5, Lam sent an e-mail to several people in her office and asked them to prepare a response to Mercer’s fax. Lam wrote that Mercer had made the request because “the DAG had tasked him with looking at resource allocations to the various districts in light of the President’s and AG’s priorities.” (Emphasis in original)

In a July 10, 2006, response to Elston, Lam stated that the statistics were “roughly accurate.”175 Lam noted that for fiscal year 2005 her office had 2,441 felony sentences, which was much higher than similarly sized districts in Massachusetts, Virginia, and the Northern District of California, although she acknowledged that the PSN number “remains low for now.” Lam also reiterated her explanations for her office’s low PSN numbers, writing that California had strict gun laws which were competently handled by local prosecutors; the Southern District of California contained only two counties, leading to consistent local enforcement of state gun laws; and that illegal guns were not a big problem in her district.176 She stated in her response that to prosecute more gun cases would reduce the number of immigration prosecutions, and that her office had recently revised and liberalized a protocol with the local prosecutor whereby gun cases in which the federal sentence exceeded the state sentence by 24 months would be referred to her office for prosecution. She said the new protocol had resulted in very few referrals.

We found no evidence that anyone in the Department leadership offices had any further communications with Lam about her office’s gun prosecutions after this response in July 2006. Lam told us that she was not told, and did not know, that her explanation for why her PSN numbers were low was unpersuasive to Department managers. She said the only conversations she had about the issue had been the ones discussed above with Comey in April and July 2004, and Lam said that Comey “didn’t have a problem” with her explanation.

Immigration Cases

The Southern District of California’s record regarding the criminal enforcement of immigration laws was also raised as a reason for Lam’s removal.

In 2004, 2005, and 2006, members of Congress complained publicly about the alleged failure of Lam’s office to aggressively prosecute violations of criminal immigration laws. These criticisms were also voiced by many Department officials. We describe below both the public and internal Department criticism of Lam’s immigration enforcement efforts, and her response to that criticism.

On February 2, 2004, Darrell Issa, a member of Congress from Southern California, wrote Lam regarding her office’s failure to prosecute an alien smuggler. A few months later, on July 30, 2004, 14 members of Congress from California wrote to Attorney General John Ashcroft to criticize the prosecution of alien smuggling in general, referencing an incident in the Southern District of California in which an alien smuggler was arrested and then released without prosecution. On November 4, 2004, Sampson (then Counselor to the Attorney General) sent a memorandum to the Attorney General’s Chief of Staff regarding the July 30 letter to Ashcroft. Citing statistics on the prosecution of immigration crimes, the memorandum concluded that the enforcement of criminal immigration laws by Lam’s office compared poorly to other Southwest Border districts.

On September 23, 2005, 19 members of Congress wrote to President Bush to complain about the Department’s failure to adequately prosecute alien smugglers, citing Lam’s office as one example. A few weeks later, on October 13, 2005, Congressman Issa wrote to Lam regarding the failure to prosecute another criminal alien case. Issa referred to what he called Lam’s “appalling record of refusal to prosecute” even the worst offenders. On October 20, 2005, 19 members of Congress wrote to Attorney General Gonzales requesting a meeting to discuss the Department’s alleged failure to prosecute criminal aliens. The letter cited Lam’s office’s alleged policy of not prosecuting criminal aliens unless they were convicted of two prior felonies in the district.177

On April 6, 2006, the House Judiciary Committee held a Justice Department oversight hearing at which Attorney General Gonzales testified. Representative Richard Keller from Florida complained to Gonzales about Lam’s “pathetic failure . . . to prosecute alien smugglers who have been arrested 20 times.” Gonzales responded in part by saying that “I am aware of what you’re talking about with respect to the San Diego situation . . . we are looking at the situation . . . and we are directing that our U.S. attorneys do more . . . .”178

On April 6, 2006, William Moschella, then the Assistant Attorney General for the Office of Legislative Affairs, sent an e-mail to the Office of the Attorney General stating that after speaking with Gonzales and Sampson he wanted to arrange a 10-minute telephone call between Gonzales and Congressman Issa to discuss “border enforcement in Southern California.” Although the call was scheduled for April 17, it appears that it never occurred. On that date, Moschella was informed by e-mail that Gonzales thought the call was unnecessary in light of his congressional testimony on April 6 and his “subsequent sidebar with Issa.” According to the e-mail, McNulty also said that if Gonzales were to talk to Issa, Gonzales could say that he had directed McNulty to look “into border enforcement practices in the San Diego area.”

On May 11, 2006, Sampson sent an e-mail to many of the Department’s senior officials to inform them that President Bush would be giving a “major speech” regarding immigration reform, and that the Department would be assigned several matters related to border enforcement in connection with a Presidential initiative on immigration reform. On that same day, Sampson forwarded to Deputy White House Counsel William Kelley the April 14, 2006, removal list, which again included Lam. Sampson commented that “The real problem we have right now with Carol Lam . . . leads me to conclude that we should have somebody ready to be nominated on 11/18, the day her 4-year term expires.”

On May 22, 2006, Congressman Issa complained on the Lou Dobbs television show on CNN about the refusal by Lam’s office to prosecute alien smugglers. The show’s producers had asked Lam’s office for an official response to Issa’s charges, which her office supplied prior to the broadcast. In the response, Lam’s office questioned the validity of documents on which Issa had relied. Two days after the broadcast, Issa wrote to Lam regarding her response. The Department and Lam apparently never responded to Issa’s letter.

On May 31, 2006, Counsel to the Deputy Attorney General Dan Fridman sent Mercer a draft analysis of immigration prosecutions in Lam’s office, which Mercer forwarded to Sampson. The memorandum stated that it was prepared because of congressional and media attention on the office’s enforcement of criminal immigration laws. The memorandum contained statistical data which indicated that the Southern District of California’s immigration prosecution numbers in general were lower than those of several other southwest border districts. Sampson replied to Mercer that he also wanted a comparison between Lam’s office and the Southern District of Texas (a district that was not included in the memorandum), and Mercer sent a final draft of the memorandum to McNulty on June 6, 2006, after receiving that data. The memorandum stated that the data showed that AUSAs in the Southern District of Texas were more productive and efficient in prosecuting immigration offenses than were AUSAs in Lam’s office.

Also on May 31, Sampson sent an e-mail to Mercer asking “[has] ODAG ever called Carol Lam and woodshedded her re immigration enforcement? Has anyone?” Mercer responded, “I don’t believe so. Not that I am aware of.”

Sampson told congressional investigators that during the April to June 2006 time frame, the Department’s senior management, including Attorney General Gonzales and Deputy Attorney General McNulty and their staffs, had “several conversations” about their concern over Lam’s office’s enforcement of immigration laws. Sampson stated that Gonzales had directed the Deputy Attorney General’s Office to work with Lam’s office to improve its immigration enforcement efforts, and that Sampson’s e-mail as to whether Lam had been “woodshedded” was seeking information as to whether the Deputy Attorney General’s Office had followed up with Lam as directed. Sampson said he recalled being concerned that the Deputy Attorney General’s Office had failed to communicate the Department’s concerns over immigration enforcement to Lam.

On June 1, 2006, Sampson sent an e-mail to Elston and Mercer stating that President Bush and Karl Rove had told Attorney General Gonzales that during the next 2 weeks the Department needed to “trumpet” its immigration enforcement efforts. That same day, Sampson sent another e-mail to Elston and Mercer, which Sampson said was related to his prior e-mail regarding immigration enforcement. Sampson wrote that “the AG has given additional thought to the SD [Southern District of California] situation and now believes that we should adopt a plan.”179 Sampson outlined the plan, which set forth a series of steps to address the Department’s concerns regarding Lam:

Have a heart-to-heart with Lam about the urgent need to improve immigration enforcement in SD;

Work with her to develop a plan for addressing the problem – to include alteration of prosecution thresholds; additional DOJ prosecutors; additional DHS SAUSA resources; etc.

Put her on a very short leash;

If she balks on any of the foregoing or otherwise does not perform in a measurable way by July 15 [my date], remove her. (brackets in original)

AG then appoints new USA from outside the office.

Sampson’s e-mail stated that this was “the sort of thing for ODAG and EOUSA to execute.” He asked Mercer and Elston to “tune up my plan/list of bullets, and be prepared to (1) present such plan to the AG tomorrow or early next week for his approval and (2) execute the plan next week.”

On June 5, 2006, Mercer sent an e-mail to McNulty stating that the Attorney General wanted McNulty’s views on the proposed plan. McNulty responded by e-mail: “If [Lam’s] numbers are really bad, I may be in favor of a call inquiring about her exit plans. I’m concerned that a PIP for a USA may create some difficult issues.”180

We found no evidence that the Attorney General’s Office, the Deputy Attorney General’s Office, or that anyone in EOUSA took any of the steps outlined in Sampson’s June 1, 2006, plan to address the issues associated with the Southern District of California’s enforcement of criminal immigration laws. For example, we found no evidence that, in response to this proposed plan, anyone had a “heart-to-heart” talk with Lam about immigration prosecutions by her office. We also found no evidence that anyone developed a “plan” to help address her district’s performance or that anyone considered providing her office with additional resources, as discussed in Sampson’s e-mail.

Sampson told congressional investigators and told us that he believed the Deputy Attorney General’s Office failed to implement the plan that he and the Attorney General had developed. However, Mercer told us he believed that the Deputy Attorney General’s Office did respond to the Attorney General’s initiative. According to Mercer, McNulty thought that the first step in implementing the Attorney General’s plan should be to ask Lam for her response to the statistics comparing the Southern District of California’s immigration and firearm prosecutions to other southwest border districts. Therefore, as discussed previously, on July 5, 2006, Mercer sent Lam portions of the Sentencing Commission report for fiscal year 2005 containing sentencing statistics for the southwest border U.S. Attorneys’ Offices. Although Mercer told us that he sent the statistics to Lam as part of the Attorney General’s plan to improve Lam’s performance, he did not tell her that. Mercer called Lam before sending the statistics on July 5 and told her that he wanted her to verify the accuracy of the statistics to make sure that they did not underrepresent her office’s performance.

Lam told us that Mercer had called her and asked her to verify if the statistics were accurate. Lam also said that Mercer made some allusion to “looking at resources on the border.” In a document that Mercer prepared for his congressional testimony, he wrote that he told Lam that he wanted her to verify that the statistics were accurate and told her that he had “reviewed data in conjunction with on-going discussions regarding DOJ resource allocations and DOJ priorities.”

The statistics Mercer sent showed that in FY 2005 fewer immigration defendants were sentenced in Lam’s district than any other southwest border district. In her July 10, 2006, written response, Lam stated that the statistics were “roughly accurate” and explained the statistics by stating that her office prosecuted only the most dangerous offenders and sought the highest sentences, which resulted in more trials with increased resources devoted to those trials. Lam wrote that she had made a decision in 2005 to reduce the number of alien smuggling cases accepted for prosecution because defendants convicted in those cases faced the lowest sentences and engaged in the least egregious behavior. Lam argued that her strategy of prosecuting the most dangerous offenders greatly increased the number of immigration cases in which longer sentences were imposed and resulted in more resource-intensive trials.

After receiving Lam’s response, Elston asked a summer intern in the Deputy Attorney General’s Office to read and comment on the response. The intern sent Elston an e-mail stating that he lacked the expertise to assess Lam’s justification for focusing on more serious crimes at the expense of not prosecuting less serious crimes. We found no evidence that anyone analyzed Lam’s response.

McNulty told us that he recalled that in the summer of 2006 Mercer and another member of his staff (who we believe was probably Fridman) were tasked with evaluating immigration prosecutions in Lam’s office. McNulty said that by the end of the summer they had identified options to approach the problem but that no decision was ever made about what options to pursue. McNulty did not identify what the options were. McNulty also asserted that Lam was aware of the evaluation of her office and participated by responding to that evaluation. It is likely that McNulty was referring to Mercer’s sending the sentencing statistics to Lam and asking her to verify their accuracy. McNulty apparently did not know that Mercer had not told Lam that the Deputy Attorney General’s Office was assessing her performance as part of a plan that could result in her removal.

On August 2, 2006, Lam met in her district with Representative James Sensenbrenner and Issa regarding immigration prosecutions. Lam summarized the results of her meeting in an e-mail she sent that day to the Department’s Office of Legislative Affairs (OLA), which OLA circulated to several Department officials, one of whom sent it to Elston and Goodling. In her e-mail, Lam stated that she had explained her office’s immigration enforcement priorities to the congressmen, that she chose to prosecute more serious offenders charged with offenses carrying longer sentences, and that it took more resources to prosecute those more serious cases.

The Attorney General had also received a letter from California Senator Dianne Feinstein on June 15, 2006, questioning immigration law enforcement in Lam’s district. On August 23, 2006, OLA Assistant Attorney General Moschella replied to Senator Feinstein’s letter, citing many of Lam’s arguments about her office’s immigration enforcement effort. The OLA letter stated that Lam’s office focused on the worst offenders by bringing felony cases that would result in the longest sentences; that alien smuggling prosecutions were increasing; and that focusing on more serious crimes resulted in more trials, which were resource intensive and reduced the overall number of cases that could be brought.

Lam told us that after her meeting with Representatives Issa and Sensenbrenner, there was a “fairly quiet” period until she was told to resign. After the Department’s August 23 letter to Senator Feinstein, we found no further evidence of any criticism of Lam’s immigration prosecution efforts before she was removed.

Lam’s Removal

According to Lam, EOUSA Director Battle called her on December 7, 2006, and thanked her for her years of service as U.S. Attorney. Battle then told her that the Department wanted to take her office in a new direction and told her to resign by January 31, 2007. Lam said she asked why, and Battle told her he did not know. Lam told us that she was “devastated,” in part because for days she thought she was the only U.S. Attorney fired. Lam said she understood from “history and tradition” that unless she committed misconduct, she would remain the U.S. Attorney until the end of the Administration.

Lam said she called McNulty a few minutes after Battle’s call to ask what had happened and whether she had done something to embarrass the Administration or the Department. According to Lam, McNulty refused to answer, saying he wanted to give some thought to the answers to her questions. Lam stated that McNulty never explained to her why she was fired. Lam also said that McNulty told her that he recognized that she had worked very hard and had even personally tried a long case (which Lam noted to us was one of the reasons the Department later proffered for her removal).

Lam said that some weeks later she commented to Elston during a telephone conversation that she was never told why she was asked to resign. Lam said that Elston responded, “I don’t know why that information would be useful to you.”

Lam said that she also called Margolis, who oversaw misconduct investigations against U.S. Attorneys, to find out whether she was fired for an ethics violation. Lam stated that Margolis told her that she was not the subject of any ethics investigation.

According to Margolis, when Lam called him after she was fired, Lam “speculated to me that [her removal] was over immigration and guns.” When we asked Lam about Margolis’s recollection, she said she did not recall speculating about whether those were the reasons she was asked to resign. She said she might have made such a comment, but did not recall doing so.

Lam said she made several attempts to delay her removal because of several important cases in her district. Lam said that Battle asked her to draft a memorandum supporting that request. Lam did so, but said she received no response for several weeks. Lam said that Elston eventually called her in early January and told her that her request for an extension of time to resign was not viewed favorably in the Department. Lam said that she spoke with Elston shortly after that, and he told her that if she announced her resignation that day, she could delay her departure two weeks beyond January 31. Lam announced her resignation on January 16 and left office on February 15.

Public Corruption Investigations

When Lam’s removal became public in early January 2007, there was public and congressional speculation that she was removed in retaliation for her office’s prosecution of Randy “Duke” Cunningham, a Republican member of the House of Representatives, and her office’s ongoing public corruption investigation of a high-ranking CIA official, Kyle Dustin Foggo.

In November 2005, after an investigation by Lam’s office, Cunningham had pled guilty to conspiracy and tax evasion. In early 2006, Cunningham received a prison sentence of 8 years. In 2007, after an investigation related to the Cunningham matter, Lam’s office indicted Foggo, then the third highest ranking CIA official, for, among other charges, conspiracy, wire fraud, and money laundering. Foggo’s case is still pending.

To determine whether these prosecutions were related to Lam’s removal, we conducted extensive searches of the e-mail accounts and electronic computer files of Sampson, McNulty, Elston, Goodling, and others in the Department who had any connection with the U.S. Attorney removals.181 We also reviewed numerous documents related to the removals. We found no evidence indicating that Lam’s removal as U.S. Attorney was in any way related to her office’s investigation or prosecution of Cunningham, Foggo, or any other official, or that she was removed to affect other such investigations or prosecutions.

Department officials also denied that Lam was removed because of the Cunningham or Foggo cases. For example, Elston testified to congressional staff that the Cunningham prosecution was “incredibly significant,” and noted that when he was an AUSA he assisted the Cunningham prosecution by securing a search warrant in the Eastern District of Virginia to obtain evidence related to the prosecution. Lam told us that she did not know why she was removed, but offered no evidence that it was because of the Cunningham or Foggo cases.

Some speculation in the media also suggested that Sampson’s May 11 e-mail stating that “the real problem we have right now with Carol Lam” was related in some way to her office’s investigation of Foggo. As discussed above, however, Sampson’s May 11 e-mail was sent shortly after Lam’s office was criticized for its immigration prosecutions during a congressional hearing. Sampson also testified that his e-mail’s reference to the “real problem” was Lam’s “office’s prosecution of immigration cases.” The evidence we found supported that testimony.182

Analysis

We found no evidence that Lam was removed because of the investigation or prosecution of Representative Cunningham or CIA official Foggo, as was claimed by some after the U.S. Attorney removals became public. Sampson and other Department officials denied this claim, and our review of Department e-mails and documents did not find any indication that these investigations had anything to do with Lam’s removal. We also note that the investigation and prosecution of Cunningham and Foggo were aggressively pursued by career prosecutors in Lam’s office, both during and after her tenure.

We determined that the Department’s claim that inattention to management was a reason for Lam’s removal was not accurate. Goodling testified and included in her summary document about the reasons for U.S. Attorney removals that Lam had personally tried cases rather than focused on the management of her office. We did not find any support that this had anything to do with Lam’s removal, and we believe it was disingenuous for Goodling and the Department to raise this claim. This appears to be another after-the-fact rationalization used to further justify the removal of a U.S. Attorney, and we found that it played no role in the decision to remove Lam.

Rather, the evidence in our investigation demonstrated that Lam was removed because of the Department’s concerns about her office’s gun and immigration prosecution statistics. Sampson placed Lam on his first removal list, and she remained on all subsequent lists. Sampson consistently testified that concern about the low number of gun and immigration prosecutions by Lam’s office was the reason for her removal. Other Department leaders corroborated Sampson’s testimony.

We also found that concerns about Lam’s low number of gun and immigration prosecutions were raised in the February 2005 EARS evaluation. In addition, in the summer of 2004 Deputy Attorney General Comey raised with Lam the priority of Project Safe Neighborhoods gun prosecutions, and we found that the Department remained concerned with the low number of gun prosecutions in Lam’s district. Her office’s immigration prosecutions also received significant congressional attention. Moreover, the Department was troubled by the relatively low number of immigration cases brought by her office compared to other southwest border offices.

In response, Lam argued to the Department that the low number of gun prosecutions resulted from a variety of factors in her district, such as California’s strong state gun laws; state and local law enforcement’s effective prosecution of gun cases in her district; her district’s heavy caseload; and the absence of a significant gun problem in her district. Lam also said that she made efforts to seek more gun cases from local law enforcement agencies, without success. With regard to immigration cases, Lam stated that she decided to prosecute the more serious offenders with charges that would result in the longest sentences, and that it took more resources to prosecute these types of cases.

Lam’s explanations did not persuade Department leaders or assuage their concerns about her prosecutorial priorities. It is the President’s and the Department’s prerogative to remove a U.S. Attorney who they believe is not adhering to their priorities or not adequately prosecuting the types of cases that the President and the Department decide to emphasize. This is true for any U.S. Attorney, even one like Lam who was described by Margolis as otherwise “outstanding,” “tough,” and “honest,” and who the EARS evaluation said was “an effective manager . . . respected by the judiciary, law enforcement agencies, and the USAO staff.”

However, what we found troubling about Lam’s case was that the Department removed Lam without ever seriously examining her explanations or even discussing with her that she needed to improve her office’s statistics in gun and immigration cases or face removal.

In fact, while it was never implemented, the Department had outlined what we believe was a reasonable and appropriate approach to address its concerns about Lam’s prosecutorial priorities. In June 2006, Sampson wrote an e-mail to Mercer and Elston that the Attorney General “believes that we should adopt a plan” with regard to the concerns about Lam. The plan included having “a heart-to-heart with Lam about the urgent need to improve immigration enforcement”; working with her to develop a plan to address the problem; and if she “balks” or otherwise does not perform in a measurable way, remove her. Sampson asked Mercer and Elston to comment on the plan and then execute it.

Yet, we found that neither Mercer nor Elston carried out the plan as outlined. Neither called Lam or had a “heart-to-heart” conversation with her about her “urgent” need to improve her district’s immigration enforcement, talked with her about her office’s prosecutions, or developed a plan to help her address her district’s performance with respect to immigration and firearms prosecutions. Moreover, no one put Lam on notice that she had to improve her performance in a measurable way or face removal, as the plan suggested.

Rather, when Mercer informed McNulty of the suggested plan, McNulty responded that “If [Lam’s] numbers are really bad, I may be in favor of a call inquiring about her exit plans. I’m concerned that a PIP [Performance Improvement Plan] for a USA may create some difficult issues.” But neither McNulty nor his staff ever made a call to Lam inquiring about her exit plans.

Mercer, who was Principal Associate Deputy Attorney General at the time, claimed that by faxing the sentencing statistics to Lam and asking her to verify them, he was executing the first step in the plan. Yet, even if he thought such action constituted the first step, he did not talk to Lam about her performance, execute any other steps of the plan, or even ask her about her exit plans, as McNulty had proposed.

The only action the Department apparently took in an attempt to assess Lam’s explanations for her office’s statistics was to direct a summer intern in the Deputy Attorney General’s Office to read and comment on her response to Mercer’s facsimile. The intern concluded that he lacked the expertise to assess Lam’s justifications for focusing on more serious immigration crimes instead of less serious crimes, and the Department conducted no analysis of her response.

We found that neither Sampson, McNulty, Mercer, Elston, nor anyone else in the Department followed the plan outlined by Sampson at the behest of the Attorney General or directly addressed with Lam the issues of concern. We also found no evidence that Sampson or Gonzales ever inquired about whether the plan had been executed. Instead, on December 7, Lam was directed to resign.

We also believe the Department handled her forced resignation unfairly by never telling her why she was being instructed to resign, despite her repeated questions. Then, when she asked for additional time because of important pending cases in her office, she was granted a 2-week extension beyond January 31, but only if she announced her resignation that day.

In sum, we recognize that the President and the Department had the authority to remove Lam at their discretion based on concerns about her prosecutorial priorities and statistics. In this case the Department designed a reasonable plan to address the concerns regarding Lam’s gun and immigration statistics, but no one implemented the plan or followed up to inquire why it had not been implemented. We believe the Department’s actions provide a clear example of the disorganized removal process and the lack of oversight over that process.

Footnotes

This chart contained one other alleged reason for Lam’s removal: “[R]ather than focusing on the management of her office, [Lam] spent a significant amount of her time trying cases – this is discouraged in extra-large districts, because these are offices that require full-time managers.” In 2005, Lam had personally tried a lengthy criminal case lasting many months. Goodling also mentioned this reason in her congressional testimony when asked about Lam. However, we found no evidence that there was a concern among Department senior managers about Lam’s decision to try the case herself, and we concluded that this reason was an after-the-fact rationalization to attempt to further justify her removal.

Project Safe Neighborhoods is a Department initiative that involves collaborative efforts by federal, state, and local law enforcement agencies, prosecutors, and communities to prevent and deter gun violence. The Executive Summary maintained on the PSN Internet website contains a description of PSN which states, “The U.S. Attorney in each of the 94 judicial districts, working side by side with local law enforcement and other officials, has tailored the PSN strategy to fit the unique gun crime problem in that district. Criminals who use guns are prosecuted under federal, state, or local laws, depending on which jurisdiction can provide the most appropriate punishment . . . . [PSN] does not mandate a ‘one-size-fits-all-approach’ . . .”

According to Lam, she had also had a prior discussion with Comey about PSN when he visited San Diego to speak at a U.S. Attorneys’ conference in April 2004. Lam stated that her first conversation with Comey was much like the second.

As discussed below, Mercer later testified to congressional investigators that when he sent the facsimile to Lam asking her to verify that the statistics were accurate, he did so at McNulty’s direction. Mercer’s facsimile also included statistics concerning immigration enforcement in her district, and he asked Lam to verify the accuracy of those statistics as well. Mercer told us that his facsimile to Lam about immigration statistics was in response to a plan by Gonzales and Sampson to address concerns over Lam’s enforcement of immigration crimes, which we discuss in the next section.

Lam sent the response to Elston because Mercer had left his position in the Deputy Attorney General’s office to return to Montana as the full time U.S. Attorney. Mercer was later appointed Acting Associate Attorney General.

Lam also asserted on several occasions that in 2005 San Diego had the lowest violent crime rate in 25 years. She stated that since the purpose of PSN was to reduce violent crime, this statistic showed that her decision to defer gun prosecutions to local prosecutors was sound.

We found no evidence this meeting was ever held.

According to Lam, no one in the Department notified her of Keller’s criticism, and she learned of it only when another U.S. Attorney mentioned it in passing several months later.

A day earlier Sampson had sent an e-mail to Mercer stating that in connection with Lam’s office, “I got some guidance from the AG this morning and we need to talk.”

A PIP refers to a “performance improvement plan,” a written document that sets forth specific goals and measures to help an employee improve his or her performance.

Gonzales did not maintain a Department e-mail account or computer files.

Some people have alleged that an August 8, 2006, e-mail Elston sent to a colleague in the Deputy Attorney General’s office asking, “have you heard back from Rizzo re SDCA case and WHC?” may have been related to Lam’s removal. However, Elston stated that “Rizzo” referred to CIA Acting General Counsel John Rizzo, and that the Deputy Attorney General’s Office was trying to assist Lam’s office to obtain classified documents from the White House or the CIA that were relevant to an investigation. Elston denied that the e-mail related to the firing of Lam. In fact, contemporaneous e-mails in July and August of 2006 show that Lam’s office was seeking the Deputy Attorney General’s Office’s assistance in obtaining classified information from the CIA on several matters, and that the White House Counsel’s Office was involved in those discussions.